P. v. Greer
Filed 1/23/09 P. v. Greer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. DONALD W. GREER, Defendant and Appellant. | B205392 (Los Angeles County Super. Ct. No. BA280774) |
APPEAL from a sentence of the Superior Court of Los Angeles County, Marsha Revel, Judge. Affirmed, in part, reversed, in part, and remanded with instructions.
Marcia R. Clark for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Donald Greer (defendant) pleaded no contest to charges of possession of a deadly weapon and possession of a controlled substance. After a lengthy delay, the trial court sentenced defendant to six years in state prison and awarded him 394 days of presentence custody credit. The trial court also issued a certificate of probable cause allowing defendant to challenge his sentence on appeal.
On appeal, counsel for defendant filed a brief pursuant to People v. Wende(1979) 25 Cal.3d 436 requesting this court to review independently the entire record. Defendants counsel advised him of the nature of the brief filed on his behalf and of his right to file a supplemental brief. Defendant filed a handwritten supplemental brief contending, inter alia, that he was entitled to presentence custody credit for the entire period he was in custody awaiting sentence in this case, i.e., substantially more credit than awarded by the trial court.
After reviewing the entire record, we requested that the parties file letter briefs addressing only the presentence custody credit issue raised by defendants supplemental brief. We have reviewed the letter briefs filed by the parties, including the documents submitted with defendants request for judicial notice,[1]and hold that the trial court properly denied presentence custody credit for the period defendant was also remanded to custody in a subsequent, unrelated case. We further hold, however, that the trial court erroneously awarded defendant presentence custody credit for the period of time between his sentencing in the unrelated case and the sentencing in this case. We therefore reverse the award of presentence custody credit and remand this case to the trial court with instructions to amend the abstract of judgment to reflect the correct amount of presentence custody credit.
PROCEDURAL BACKGROUND
Defendant was arrested in this case on March 6, 2005, and charged with possession of a deadly weapon and possession for sale of a controlled substance. According to defendants trial counsel, defendant bailed out the day he was arrested. Defendant apparently remained free on bail through the May 8, 2006, hearing in this case.
On May 19, 2006, however, defendant was arrested for committing four narcotics-related offenses (the second case [No. SA060525]). Defendant posted bail in the second case and was released from custody on or about May 20, 2006.
Less than a week later, on May 24, 2006, defendant was again arrested for committing narcotics-related offenses (the third case [No. LA052510]). He was arraigned in the third case on May 26, 2006, and remanded to custody in that case.
At a hearing in this case on June 2, 2006, the trial court exonerated bail and reset it at $20,000 based on defendants arrest in the third case. Defendant was remanded to custody in this case and the trial court issued a temporary commitment.
On June 8, 2006, a preliminary hearing was held in the third case. Because the People were unable to proceed, the trial court granted defendants motion to dismiss the third case pursuant to section 1385.
On June 14, 2006, at the arraignment in the second case, the trial court noted that defendant had been arrested in a new case, apparently referring to the third case. The trial court in the second case exonerated defendants bail, reset it at $50,000, and remanded defendant to custody in the second case as well.
Defendant was apparently unable to make bail in either the first or second case and remained in presentence custody in both cases through sentencing in the second case. On January 26, 2007, the trial court in the second case accepted defendants plea of nolo contendere as to Count 1 and sentenced defendant pursuant to a plea agreement. The trial court denied probation and imposed a sentence of 16 months in any state prison on Count 1. The remaining counts were dismissed pursuant to the agreement, and defendant was awarded 372 days of custody credit, comprised of 248 days of actual credit,[2]apparently for the time spent in custody in the second case, and 124 days of conduct credit. As to the 16-month sentence on Count 1, the trial court indicated that it was to run concurrent with any other time. Following pronouncement of sentence in the second case, a temporary commitment issued.
In this case, defendants custody status between the June 2, 2006, hearing at which defendant was remanded to custody and the December 11, 2007, sentencing hearing was consistently shown in the intervening minute orders as remanded. It also appears that defendant was present in court in this case on several occasions between the January 26, 2007, sentencing hearing in the second case and the December 11, 2007, hearing in this case.[3]
On December 11, 2007, pursuant to a prior plea of no contest in this case,[4]the trial court sentenced defendant on Count 2 to a total of six years in any state prison and on Count 1 to two years in any state prison to run concurrently with the sentence on Count 2. The trial court awarded defendant 394 days of presentence custody credit, consisting of 263 days of actual custody credit and 131 days of conduct credit. A handwritten calculation on the first page of the Probation Officers Report indicates that the 263 days of actual custody credit were calculated from March 25, 2007. But there is no indication in the record why defendants actual custody credit in this case was calculated from that date.
Following his sentencing in this case, defendant filed a Motion to Appeal in the trial court. In response, the trial court issued a certificate of probable cause that allow[ed] the defendant to proceed with his appeal of his sentence in this case.
DISCUSSION
A. Standard of Review
Because the number of days that defendant was in actual custody in this case and the second case are not in dispute, his challenge to the trial courts custody credit award raises purely legal issues that are reviewed de novo. Since the facts regarding defendants actual time in custody are undisputed, his claim presents solely a question of law. Accordingly, we apply the de novo standard of review and give no deference to the trial courts ruling. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [35 Cal.Rptr. 2d 418, 883 P.2d 960]; People v. Bravo [(1990)]219 Cal.App.3d [729,] 732.) (People v. Culp (2002) 100 Cal.App.4th 1278, 1282.)
B. Presentence Custody Credit Calculation
Defendant contends that he is entitled to custody credit for the entire time he was in presentence custody in this case, whereas his counsel contends his custody credit should be increased to account for the period he was in presentence custody prior to sentencing in the second case. To evaluate these contentions properly, we must separately analyze certain discrete time periods during which defendant was in presentence custody and the reasons therefor.
1. Credit for the Period Defendant Was Remanded to Custody in this Case but not Yet Remanded to Custody in the Second Case
Defendant was remanded to custody in this case on June 2, 2006, and was not remanded to custody in the second case until June 14, 2006. He therefore should receive credit for the period between June 2 and 13, in addition to credit for the date of his arrest, for a total of 13 days actual custody credit, plus an additional six days of conduct credit, for a total of 19 days of presentence custody credit.
2. Credit for the Period Defendant Was in Custody in the Second Case
Defendants counsel contends that he is entitled to additional presentence custody credit in this case for the entire period that he was simultaneously in custody in the second caseJune 14, 2006, through January 27, 2007notwithstanding that defendant received full credit for that same period against his sentence in the second case. According to his counsel, defendants incarceration during that period was attributable at least in part, to the instant case. We disagree.
The presentence custody credit issue is controlled by Penal Code section 2900.5[5]which reads in pertinent part: (a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, . . . [] (b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.
The Supreme Court in In re Joyner (1989) 48 Cal.3d 487 (Joyner) applied section 2900.5 in a factual situation analogous to this case. In that case, arrest warrants issued in California charging the defendant with robbery and grand theft. (Id. at p. 489.) The defendant was thereafter arrested in Florida for unrelated crimes committed in that state. (Ibid.) When the Florida authorities discovered the outstanding California arrest warrants, they placed a hold on the defendant at the California authorities request. (Id.at pp. 489-490.)
The defendant pleaded guilty to the Florida charges, was sentenced to concurrent terms of three years in Florida state prison, and received presentence custody credit for the entire time he was in custody in Florida prior to his sentencing there. (Joyner, supra, 48 Cal.3d at p. 490.) The defendant was then extradited to California where he pleaded guilty to the robbery and grand theft charges. (Ibid.) The California trial court sentenced defendant to a four-year prison term which ran concurrent to the Florida terms pursuant to section 669. (Ibid.) The California trial court, however, expressly denied the defendants request for presentence custody credit for the entire time he was in custody on hold in Florida and in custody in California. (Ibid.)
The defendant in Joyner, supra, 48 Cal.3d 487 filed a petition for a writ of habeas corpus that the Court of Appeal denied. (Id. at p. 490.) The defendant then filed a writ of habeas corpus in the Supreme Court which issued an order to show cause. (Id. at p. 491.) According to the defendant, he was entitled to presentence custody credits against his California sentence for custody time in Florida and California from the date a hold was placed against him for the California offenses until he was sentenced in California, all of which time ha[d] already been credited against [the defendants] Florida sentence. (Id. at p. 489.) The Supreme Court characterized the issue before it as the recurring troublesome question of when custody is attributable to proceedings related to the same conduct for which the defendant has been convicted within the meaning of section 2900.5, subdivision (b). (Ibid.)
In denying the defendants petition, the court in Joyner, supra, 48 Cal.3d 487 held that a period of time previously credited against a sentence for unrelated offenses cannot be deemed attributable to proceedings resulting in a later-imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence. In other words, duplicative credits against separately imposed concurrent sentences for unrelated offenses will be granted only on a showing of strict causation. Under this test, [the defendant] has not demonstrated entitlement to the credits he seeks. (Id. at p. 489.)
In the instant case, defendant was awarded full custody credit in the unrelated second case for the time he spent in custody in that case from June 14, 2006, through his January 26, 2007, sentencing hearing. Thus, just as the defendant in Joyner, supra, 48 Cal.3d 487, defendant here is not entitled to duplicative credit for that time period against his sentence in this case because he cannot show that, but for this case, he would have been at liberty.
3. Credit for the Period Defendant Was in Custody Between Sentencing Hearings
The trial court awarded defendant presentence custody credit for a portion of the time he was in custody after the January 26, 2007, sentencing hearing in the second case awaiting sentencing in this case. Defendant contends that he is entitled to presentence custody credit for the entire period of time he was in custody in this case following the January 26, 2007, sentencing hearing in the second case. Based on the Supreme Courts decision in In re Rojas (1979) 23 Cal.3d 152 (Rojas), we disagree with both the defendants contention and the trial courts award of credit for a portion of that postsentence period.
In Rojas, supra, 23 Cal.3d 152, the defendant was convicted of manslaughter and sentenced to state prison. (Id. at p. 154.) A year later, he was charged with murder in an unrelated case. (Ibid.) The defendant was transferred from state prison to county jail to await trial in the murder case. (Ibid.) Following trial, the defendant was convicted of second degree murder and sentenced to state prison for the term prescribed by law to run concurrently with his prior sentence for manslaughter. (Id. at p. 155.) The defendant remained in county jail until the date of his sentencing in the murder case, a period of 207 days. (Ibid.)
The defendant filed a petition for writ of habeas corpus seeking presentence custody credit against the sentence in his murder case for the 207 days he spent in county jail awaiting trial on the murder charge. (Rojas, supra, 23 Cal.3d at p. 155.) The Supreme Court denied the petition, stating that [t]he sole question is whether [the] defendant is entitled to a credit against his second degree murder sentence for the 207 days he spent in county jail while awaiting trial and disposition of that charge when he would necessarily have served that 207-day period in state prison for the original manslaughter conviction and when he was already receiving credit for that period against his original conviction. We conclude that the proper interpretation of Penal Code section 2900.5 denies [the] defendant the credit he seeks. (Rojas, supra, 23 Cal.3d at p. 155.) According to the court in Rojas, [t]here is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendants liberty. (Rojas, supra, 23 Cal.3d at p. 156.)
In this case, as in Rojas, supra, 23 Cal.3d 152, defendant was sentenced to state prison in the second case well before the trial court imposed sentence in this case. Under the reasoning of Rojas, the time he spent in custody after sentence was imposed in the second case cannot be attributed to the offenses charged in this case because, regardless of those offenses, he would have been in custody due to the sentence in the second case. As the court in Rojas stated, the pending proceeding [in this case had] no effect whatever upon defendants liberty once the trial court imposed sentence in the second case on January 27, 2007. (Id. at p. 156.) We therefore reverse the trial courts award of presentence custody credit to the extent it was based on the time defendant was in custody after the sentencing in the second case.
DISPOSITION
The trial courts decision not to award presentence custody credit for the period defendant was also in custody in the second case (No. SA060525) is affirmed. The trial courts award of 394 days of presentence custody credit for a portion of the period defendant was in custody after sentencing in the second case is reversed and the matter is remanded to the trial court with instructions to amend the abstract of judgment to reflect an award of 19 days of presentence custody credit for the period defendant was remanded into custody solely in this case, i.e., the March 6, 2005, day of his arrest in this case, plus the period from June 2, 2006, through June 13, 2006. No other presentence custody credit should be awarded.
MOSK, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
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[1] Defendants request for judicial notice is granted. Based on our review of the entire record as required by People v.Wende, supra, 25 Cal.3d 436, we have identified a single arguable issue concerning the trial courts award of presentence custody credit, but there are no other arguable issues concerning defendants judgment of conviction or sentence.
[2] It is unclear from the record what dates the trial court used to calculate defendants custody credit in the second case, but the 248-day period appears to include all of the time spent in custody from June 14, 2006, through January 27, 2007.
[3] That defendant was able to appear repeatedly in the trial court in this case following the January 26, 2007, sentencing hearing in the second case suggests that defendant was remanded in the second case to county jail, not state prison, presumably to await sentencing in this case.
[4] On November 30, 2005, defendant entered a plea of no contest, but sentencing was put over to a later date. Pursuant to the plea agreement, a sentence of ten years, suspended, and one year in county jail would be imposed, but it was conditional and would be imposed only if defendant appeared for sentencing and was not arrested and charged with any other offenses prior to sentencing. If, prior to sentencing, defendant failed to appear or committed another offense, the plea would convert to an open plea with a maximum sentence of 13 years, eight months. As noted above, prior to sentencing in this case, defendant was arrested and charged in the second and third cases.
[5] All statutory references are to the Penal Code.
